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Should a suspect talk to the police?

By David Cmelik

I can’t say what they should do. Their situation is fact dependent and no internet blog should serve as the basis for legal advice. That’s what real lawyers, live and in person, are paid to do. But if such a person has any idea what the detective might want to talk to about, odds are they probably need to talk to a lawyer first. Initial consultations for good lawyers are generally free. Representation after that can sometimes entail a retainer smaller than that required for a formal indictment. If the case develops into a prosecution, you can generally roll your pre-charge consultation retainer into full-on representation. If a person believes he or she is the target of a criminal investigation (and sometimes people are even when they don’t believe it), then they should consider hiring an attorney. This is one place where, at least in the State of Iowa, hiring an attorney provides a service above and beyond that provided by court-appointed counsel. Attorneys are not court appointed unless and until you are being prosecuted. For interrogation suspects, this comes a little too late. And there are good reasons to talk to a lawyer before a suspect is interrogated and charged. Police detectives and patrol officers are people. Even well-intentioned officers suffer from preconceived notions about suspects– including prejudice regarding who is guilty. Because police officers are human beings, like all of us, they’re fallible creatures. Yet, right or wrong, police detectives are entrusted with enormous power to initiate investigations, draw conclusions, and recommend prosecution. Part of that process includes interrogation. Interrogation is the art of extracting confessions from suspects, sometimes without them knowing an incriminating statement is being made. For example, consider the following hypothetical interrogation of a statutory rape suspect: Q: Well, John Doe, we know the victim’s side of the story, we’re just trying to write the report, shore up the file, and provide our recommendation to the prosecutor. He’s going to do what he will with this, it’ll be out of our hands, and we can’t make any deals, but if you don’t give us your side, well, it will be very one-sided. I’m trying to put your side out there and I want to know whether or not she told you she was 18 before you had sex with her and whether it was consensual. Those two things are all I want to know to put your side out there so the report I write isn’t so one-sided. Was she 18 and did she say it was okay to have sex with her? A: It was totally consensual and she did tell me she was 18. Bravo, Mr. Doe. You just confessed to statutory rape and it made not a whit of difference whether it was consensual or whether she told you she was 18. Mr. Doe in this hypothetical just confessed to having sex with an underage girl, incapable of giving consent. Mr. Prosecutor, que confession video tape. Interrogator, pick up your self-congratulatory award for a most successful interrogation at the dispatcher’s desk. In other cases, police interrogators are actually allowed to lie to suspects. Police officers are fond of describing this with euphemisms, like, “developing a narrative,” perhaps identifying with suspects that they know the pain of the interrogation target because they have been divorced, or something peripheral. In other more serious cases, they can build a factual narrative that directly contradicts with reality. For example, consider this hypothetical interrogation of a drug rip-off suspect. Q: Mr. Complicit, we have your buddy in the next room (they really don’t) and he’s pointing fingers and giving you up (he’s really not). He’s says you flashed a gun, pistol whipped the victim, and took their wallet and i-pod. So he’s flappin’ his gums in there and trying to dig himself out of a tough situation and here you are in here playing tough guy and thinking you are holding to a street code that snitches are *itches. There’s gonna be some calls made to the prosecutor and they’re gonna want to know what was said here. I don’t make deals. That’s not my role. But I’ve got to write the report. So what’s it gonna be? A: Mr. Co-Defendant said that? H***, no. That ain’t right. He had the gun, and there wasn’t no i-pod. That kid is lying. You find an i-pod? No. I just went along to get some cash for a little weed. I didn’t plan nothin’. I just went along. I just was the look out. Nothin’ else. Nice going, Mr. Complicit. Maybe your lawyer can back out of this one, maybe not, but you did yourself no favors. In this case, Mr. Complicit’s minimization and attempt to counter the ethereal co-defendant statement actually landed him in joint criminal conduct territory, where he may be just as criminally responsible as the pistol whipper. In these two hypotheticals, both suspects would have been far better off invoking their right to remain silent and their right to an attorney. Audio and video recordings like this lose cases every day. Even though their absence from a prosecution may not spell a defense win, clients do themselves no favors by attempting to outwit professional interrogators. As has been articulated in famous opinions on interrogation, police have long since evolved interrogation tactics from the rubber hose, the bright light, and the telephone book bruiser. Tactics are more subtle, nuanced, and can even snare targets with kindness.

A blog is not legal advice. No attorney-client relationship is established by reading a blog or by sending unsolicited information to a lawyer over the Internet.